Hollywood Scandal Highlights Employer Responsibilities in Harassment Cases: A Script for Success
As a management side employment attorney, I work with employers to mitigate risk, comply with federal, state, and local law, and to create a workplace culture in which people feel safe and respected.
Likely, I am not alone in this. Lawyers do what lawyers do, especially on the defense side.
Many of the examples I include in an employer’s anti-harassment policies include ones I read over the weekend in a complaint submitted to the California Civil Rights Department by the actress Blake Lively against her It Ends With Us (a compelling book by Colleen Hoover about ending the cycle of domestic abuse) against her co-star and the director, Justin Baldoni, the film’s production company, Wayfarer Studios, its executives and backers, and the crisis management team Baldoni hired after Ms. Lively complained to HR about sexual harassment and retaliation on set.
The complaint highlights serious workplace issues that extend beyond Hollywood glamour, touching on fundamental workplace rights and protections—especially when there is a power imbalance.
According to the complaint, Baldoni made unwanted advances, suggestive comments, and generally disregarded professional boundaries.
Male executives allegedly showed Ms. Lively and female crew nude photos and videos, discussed their sex lives and asked about hers, and entered Ms. Lively’s dressing area knowing she was undressed.
When Ms. Lively rejected these advances, she alleges that Baldoni retaliated by creating a hostile work environment.
Ms. Lively claims that the studio failed to address her concerns adequately, effectively allowing Baldoni's behavior to continue unchecked.
Then, after Ms. Lively rejected Baldoni's advances by refusing to play along, he and others retaliated against her.
Now, I’m not going to go in all of the crisis management/PR intrigue reported by the media. You can read about those salacious details in any one of a variety of sources.
Lively and Others Complained to HR, and Her Employer Agreed That the Shenanigans Would Cease.
Ms. Lively alleged a list of some thirty actions she wanted stopped - on behalf of herself, her employees, and the crew.
They included:
No showing nude videos or photos of women to employees. Allegations include that Baldoni and the CEO of Wayfarer did just this to Ms. Lively and/or her employees.
No more descriptions of their genitalia to Ms. Lively. (Ew, gross)
No physical touching or sexual comments. Ms. Lively required no more physical touching or sexual comments (without her consent) by Baldoni and the CEO of Wayfarer to her, her employees, and all female cast or crew without express consent. Apparently, Baldoni took liberties with the more romantic scenes in the film - kissing her when the script didn’t call for it, biting her lip, and having his buddies on set during nude scenes. (Gross)
No comments about an employee’s weight. Allegations include that Ms. Lively, who was four months postpartum and nursing, needed to lose weight.
The list goes on. Earlier this year, the parties discussed the entire list at an “all-hands” meeting to stop the hostile work environment allegedly created on set.
Now, these are allegations, and they will remain as such until proven.
That said, receipts back the complaint, including texts between and among Baldoni and a crisis communication team hired to manage his image, emails, and plans.
Well, well indeed.
Let’s Talk About The Sexual Harassment Aspect.
Now, let’s contextualize sexual harassment so you know what kind of conduct and/or comments can lead to a finding of sexual harassment and a hostile environment in your workplace.
Sexually charged comments or locker room-type banter about sex, a person’s sex life, a person’s body or attractiveness etc., made by executives, supervisor, or any employee to another may subject an employer to liability under federal law (Title VII of the Civil Rights Act of 1964) or state law if it rises to the level of sexual harassment by creating a hostile work environment.
To constitute a hostile work environment based, first, the comments themselves must be based on a protected characteristic, such as sex.
Second, Title VII requires that the comments are severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive.
Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the person harassed considers it to be offensive and abusive.
If we’re talking sexual harassment, offensive conduct may include, but is not limited to, offensive sex-based jokes, slurs, sexual innuendo; physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
These must be based on the harassee’s gender, body parts, romantic life (or seeming lack thereof), etc.
Additionally, not only can the harasser be the victim’s colleague, customer, or supervisor, but—and you may not know this—the victim does not have to be the person harassed.
A person may be sexually harassed if they are negatively affected by the offensive conduct if said harassment meets the aforementioned criteria.
Here, in Ms. Lively’s complaint, the allegations suggest that Baldoni’s behavior created a hostile work environment.
We may have assault, too, as Ms. Lively alleged that Baldoni bit her lip and improvised additional touching, kissing, and other acts not in the screenplay.
But what about HR? Where were they in all of this? Often, a finding of unlawful sexual harassment stems from the employer’s failure to act on reported complaints.
How About Retaliation?
To make out a claim for retaliation, an employee need only demonstrate that (1) she was engaged in a “statutorily protected activity” by opposing an employment practice which she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer; and (3) there is some causal connection between the two, i.e., an adverse action following a statutorily protected activity.
Photo by Nathan DeFiesta on Unsplash
Complaining to HR or management about unlawful workplace discrimination is “protected activity” under Title VII, which contains an anti-retaliation provision making it unlawful for an employer to subject an employee to an “adverse action” (such as termination, pay cut, demotion, lack of promotion) when that employee has opposed any practice made an unlawful employment practice by Title VII.
“Opposition” to an unlawful employment practice includes not only complaining about alleged discrimination or unlawful harassment, in reasonable good faith, against oneself OR others, but also providing information to an employer’s internal investigation of an EEO matter.
You can read a list of protected opposition activities here.
Ms. Lively’s complaint alleges that after she rejected Baldoni’s advances and complained about the misconduct, he retaliated against her by both creating a hostile work environment on set and working with a PR team to ruin her reputation.
Again, you want more? Go to TMZ for these tidbits.
Practical Takeaway
The first takeaway is one from my mother, the daughter of a Passaic, New Jersey judge: never put anything in writing that you do not want other people to see.
This complaint contains emails and texts from Baldoni and his team that appear to back up many allegations.
And, the complaint noted the lack of employment protections, such as a handbook and sexual harassment policy.
Employer Takeaways
For now, the employee’s allegations are only that—allegations.
That said, I predict (and no, of course I lack a crystal ball, but) a hefty payout here - either as a settlement or by the California agency that investigates these claims.
Lessons for employers include:
Have an employee handbook with an anti-harassment policy that includes specific misconduct and examples, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, etc.
The workplace is not a frat house. If you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against; document all findings.
Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for discipline.
Maintain a top-down culture of respect, anti-retaliation, and intolerance of unlawful harassment.
Consider your organizational culture. As I noted here, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture. Leaders must believe authentically that harassment is wrong, articulate these beliefs, and hold this same expectation of others in the workplace.
Employers have a legal obligation to provide a safe and respectful work environment and to take appropriate action when complaints are made—even in Hollywood on a movie set!